Beadleston v. Beadleston

• Decision Date: 29 October 1886
• Citation: 103 N.Y. 402,8 N.E. 735
• Parties: BEADLESTON v. BEADLESTON.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 402

8 N.E. 735

BEADLESTON

v.BEADLESTON.

Court of Appeals of New York.

October 29, 1886.

Action by husband for divorce. Defendant's motion for allowance granted. Plaintiff appeals.

RUGER, C. J., and DANFORTH, J., dissenting.

Samuel Untermyer, for appellant.

Eugene D. Hawkins, for respondent.

EARL, J.

The plaintiff commenced this action against the defendant for an absolute divorce on the ground of her adultery. She recriminated in her answer, and denied the charges made against her. The cause, being at issue, was referred to a referee to hear and determine the same, and he, after hearing the evidence, made his report, wherein he finds the defendant guilty of the adultery charged, and the recriminating charges untrue, and he ordered judgment in plaintiff's favor. Before the trial of the action the court, upon motion of the defendant, made her an allowance, besides alimony, of $1,000 for the payment of counsel fees and other expenses in making her defense. That allowance the plaintiff paid. After the report of the referee the plaintiff moved for judgment thereon, and the defendant moved for a further allowance to pay her expenses, including counsel fees incurred in the defense of the action, and all plaintiff's proceedings were stayed until her motion could be heard and determined. In her moving papers the defendant did not claim that she needed any allowance to oppose plaintiff's motion for judgment; but her sole claim was that she needed it to pay expenses theretofore incurred, and for that purpose the court at special term granted an allowance of $3,500. Upon appeal by the plaintiff to the general term the order of the special term was modified by reducing the sum allowed to $2,500, and, as thus modified, it was affirmed. The allowance was not claimed, at any time, nor granted, upon the ground that it was necessary to enable the defendant to carry on her defense to the action.

We think the allowance was unauthorized. The authority to make such an allowance during the pendency of the action rests entirely upon the statute (Code, § 1769) which provides that the court may, during the pendency of the action, ‘from time to time, make and modify an order or orders requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action.’ The purpose of the statute is to furnish the wife means to carry on her action, or to defend the same during the pendency thereof. The allowance looks to...